TMI Blog2017 (1) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed in the first year; to the extent that appellant has not availed of the credit in the first year, there can be no cavil again on lumpsum availment beyond the first year. Reliance placed in the case of COROMANDEL FERTILIZERS LTD. Versus COMMR. OF C. EX. (A), VISAKHAPATNAM-IV [2008 (8) TMI 333 - CESTAT, BANGALORE], where it was held that there was sufficient reasons for the appellants for not taking credit during the relevant period in view of the Uncertainty in the matter. When the law is settled on the issue, there is no justification to deny the credit on the ground that it is availed after a long time. Appeal is allowed by restoring of credit - decided in favor of appellant. - E/321/2012 - A/94652/16/SMB - Dated:- 22-8-2016 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit availed by remitting ₹ 330/- on 26 th March 2011. The appellant, thereafter filed the refund claim referred supra. 3. A rather peculiar show cause notice was issued on 25th August 2011 with certain unusual and uncommon proposals amidst with proposal to reject the refund claim. The proposed rejection did not cite any particular provision that would apply to this unusual claim for refund. Nevertheless, the notice did allege that the claimant had indulged in subterfuge to claim this refund through a less than straight route. It alleges that the appellant had wrongly availed credit and, in order to avoid penal action, reversed the credit and resorted to refund claim as that is not a penalisable offence. It also alleges that rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on 1 st March 2011. The critical issue here is that the said credit had never been utilised. 6. Appellant was advised against availment of credit and the finding of ineligibility was rendered by original authority, and concurred with in appeal, on the ground that rule 4 of CENVAT Credit Rules, 2004 permits credit of duty paid on inputs only when exercised immediately on receipt of inputs in factory and that on capital goods in similar manner, but restricted to on half of the duty with availment of the remaining amount in the following year. Learned Counsel for appellant canvassed for restoration of credit while Learned Authorised Representative opposed it. 7. I find this interpretation on the part of lower authorities to be errone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i-Bang)] , the Tribunal held that 6. We have gone through the records of the case carefully. The entitlement of credit on the fuel is not under dispute. The only objection is that whether the credit can be availed after a lapse of 3 to 7 years of receipts of inputs in the factory. Even though, the rule say that the credit may be taken immediately, it is true that no outer time limit has been prescribed. The Revenue s contention is that within reasonable time, the appellant ought to have availed the credit. It has been held by the Apex Court in the case of CCE, Jaipur v. Raghuvar (India) Ltd. reported in 2000 (118) E.L.T. 311 (S.C.) that any law or stipulation prescribing a period of limitation to do or not to do a thing after the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me and allow the appeal with consequential relief. 10. The decisions cited by Learned Authorized Representative, viz. i. Union of India v. Solar Pesticides Pvt Ltd [2000 (116) ELT 401 (SC)] ii. Commissioner of Central Excise, Mumbai - II v. Allied Photographics India Ltd [2004 (166) ELT 3 (SC)] iii. Sahakari Khand Udyog Mandal Ltd v. Commissioner of Central Excise Customs [2005 (181) ELT 328 (SC)] iv. Rajasthan Spinning Weaving Mills Ltd v. Commissioner of Central Excise, Jaipur II [ 2006(194) ELT 254 (Tri.-Del.)] v. Kelhin Fie Pvt Ltd v. Commissioner of Central Excise, Pune - I [2009 (16) STR 71 (Tri.-Mum)] 11. all relate to doctrine of unjust enrichment which are not relevant to this dispute as no ref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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